Protection of minors and human dignity in audiovisual and information services: Green Paper
The Green Paper's objective is to add depth to the debate on the conditions governing the emergence of a coherent protection framework for minors and human dignity in audiovisual and information services in the European Union (EU).
Green Paper on the protection of minors and human dignity in audiovisual and information services [COM (96) 483 final - Not published in the Official Journal].
The battle against the circulation of material affecting human dignity and the protection of minors is essential for enabling new audiovisual and information services to develop in a climate of confidence. If effective means of protecting the public interest in these areas are not quickly identified and implemented, there is a risk that these new services will not achieve their full economic, social and cultural potential.
Chapter I of the Green Paper identifies those aspects of the development of new audiovisual and information services relevant to the protection of minors and human dignity and analyses the types of material which could give rise to problems. It points out that it is important not to confuse different issues. For example, child pornography, which is illegal and subject to criminal sanctions, is not in the same category as adult pornography, to which children may have access but which, while harmful to their development, is not illegal for adults.
Solutions must also be adapted in the light of developments in the service environment. New television services such as pay-per-view offer increased personal choice. They are moving away from the standard model of the mass media, where the viewer has a choice between watching the programme or not, and towards an editorial model, where the viewer selects from a wide choice of programmes.
On-line services are taking this trend further, towards an individual communication model. In geographical terms, distribution networks are becoming less national and increasingly global in nature, with the Internet being a world-wide network of networks.
Furthermore, new types of material are appearing. A traditional television programme, watched from beginning to end, is linear in nature, while interactivity enables the exploration of different scenarios. Hybrid formsof material are beginning to appear, bringing together, for example, games, advertising or information in an original way.
The development of new services requires a flexible environment, particularly in terms of regulation. A functional analysis of the characteristics of each new type of service is required in order to identify new solutions. Any new risk inherent in the nature of the new services must be assessed carefully; the fears aroused by new audiovisual and information services justify the attention both of the authorities and of citizens. However, the problem must not be exaggerated; frequently, the difficulty lies more in the characteristics of new services in relation to the traditional media than in their content.
Chapter II contains an analysis of the legal and constitutional provisions in force at European and national level. It points out that all national provisions in Europe fall within the framework of basic rights as set out in the European Convention on Human Rights, integrated as general principles of Community law by Article F(2) of the Treaty on European Union. In particular, Article 10 of the Convention guarantees the right of free expression. It also states that the exercising of this right may be subject to certain restrictions for specific reasons, in particular the protection of health or morals and the prevention of crime. As a result, freedom of expression is not absolute anywhere in the European Union, but is subject to restrictions. The case law of the European Court of Human Rights has developed the principle of proportionality, i.e. the acid test of conformity between any restrictive measure and the basic principles as set out in the Convention. Europe therefore has a joint approach - the principle of free expression and the test of proportionality. Beyond this common basis, the current systems in the Member States vary considerably, reflecting differences in cultural and moral standards.
In general, the new services may create new problems, specifically with regard to the application of legal provisions. For example, it is increasingly difficult to determine responsibilities where a number of different operators are involved in the communications chain (network supplier, access provider, service provider, material provider). These difficulties are all the greater when the various elements in the chain are in different countries.
Chapter II then examines problems relating to the protection of minors against material which is harmful but not necessarily illegal, such as erotic material for adults. In some Member States, the principle of protection of minors is integrated into general provisions, whatever the medium in question, forbidding the provision to minors of material likely to be harmful to their development (but which is legally accessible to adults). Other Member States have provisions specific to each medium. In all cases, the implementation of measures to protect minors requires the identification of measures to ensure that they will not have access to harmful material, while authorising access to adults. Recent technological developments may provide new solutions through increased parental control, both in television (the "anti-violence" or "V" chip) and in on-line environments (PICS). In either case, labelling of material is a key element of the system. The new technological possibilities are more limited in television than in the on-line environment, but in both cases they have the advantage of offering bottom-up rather than top-down solutions, which make any prior censorship superfluous and strengthen the potential effectiveness of self-regulation.
Chapter III presents an analysis of the situation at European Union level, with regard both to Community law and to cooperation in the fields of justice and internal affairs. Freedom to provide services is one of the four basic freedoms guaranteed by the Treaty. Restrictions are possible for overriding reasons of public interest, such as the protection of minors and human dignity, but are subject in particular to the test of proportionality.
In the fight against illegal material, it is recognised that cooperation between Member States in the fields of justice and internal affairs has a fundamental role to play, given the international nature of the new services. Through such cooperation, the Member States can more effectively act against illegal use and material. In addition, internal coherence will make them better able to work towards solutions on a global scale.
Chapter III reviews various possibilities for strengthening cooperation between national administrations and the Commission, both at Community level and in the context of justice and internal affairs (systematic exchange of information, comparative analysis of national legislation, definition of a common framework for self-regulation, recommendations for cooperation in the areas of justice and internal affairs, common guidelines for international cooperation). It also assesses the possibilities of encouraging cooperation between the industries concerned (codes of conduct, common standards for labelling systems, promotion of the PICS standard). Possible measures for raising the awareness of and informing users are also discussed.
The attention and urgency regarding the protection of minors and human dignity are mainly focused on decentralised services, particularly the Internet. Where these are concerned, it seems clear that, within the limits inherent in purely national solutions and given the difficulty of formulating and implementing global solutions, the E U has a fundamental role to play. But the potential for the transnational development of centralised services also justifies the search for common and/or compatible solutions in the European Union for services of this type.